Website & E-Commerce FAQ

I. E-Commerce/Technology

Question: May I freely copy things I find on the Web?
Answer: Generally, no. U.S. copyright law protects the copyright owner (which may be the website owner) from the unauthorized copying of items found on its website. If you would like to copy something found on a website, the permission of the copyright owner is usually in your best interests. There are some exemptions, however, including copying that is considered “fair use” or copying items that are in the public domain.

Question: May I freely link to other websites?
Answer: It depends. Generally, you may link to the homepage of another website without risk of a lawsuit. This was the intent of the designers of the World Wide Web. Linking to a webpage other than the homepage of another website, known as “deep-linking”, has been found to be illegal by federal courts. Another linking issue concerns the text of your hyperlink. If you use language that is considered defamatory as the description of your link, you may risk being sued by the website owner for your libelous description.

Question: What is framing technology and what are the risks of using framing technology on my website?
Answer: The risks depend on how you use the framing technology on your website. Commonly, websites have a frame that is used as a menu and another frame that is used to display the main text of the webpage. It is lawful to use frames to simply divide your webpage into different windows, and populate those frames with your own content that originates from your website. It is generally unlawful when the frames are populated with content from another website and the remainder of the webpage contains your advertising or opinions regarding the other website's content.

Question: How can I protect myself from losing my domain name?
Answer: First, you should review the domain name policy of the organization which administers your domain name. Second, you should ensure that the registration information regarding your domain name is correct and that you are listed as the domain name owner. Third, you should also keep track of your domain name renewal date and renew prior to the renewal deadline. You may also trademark your domain name to prevent unscrupulous individuals, known as “cyber squatters”, from taking your domain name and using it for commercial gain. A domain name, however, may only be afforded trademark protection if it is used to identify your product or service and not merely as the address of your website.

Question: Are clickwrap agreements binding?
Answer: Yes. Agreements that you enter into online are binding. You should read these agreements very carefully as most clickwrap agreements contain numerous disclaimers and limitations of liability.

Question: If I publish a website on the World Wide Web, may I be sued in a court in any other state or country?
Answer: It depends. If your website merely posts information without any interactive feature (such as a webform), you most likely could not be hailed into a court of any jurisdiction. The commonly accepted rule is that the more interactive your website is with the general public, the more likely you open yourself up to jurisdiction in any geographic area.

II. Intellectual Property

Question: What is a copyright? How does it differ from a patent?
Answer: A copyright is an exclusive set of legal rights afforded to an original work of authorship fixed in any tangible medium of expression. For example, if you create an original song and record that song, the sound recording of your song is afforded copyright protection. Generally, copyrights differ from patents in that copyright law prevents the unauthorized use of the author's expression of his idea, whereas patents prevent the unauthorized use of the idea itself.

Question: What rights do I have if I own the copyright to a particular work?
Answer: There are six exclusive rights granted to the owner of a copyrighted work. These are: (1) to reproduce the work; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies of the copyrighted work to the public; (4) to perform the copyrighted work publicly; (5) to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Question: How do I copyright my software and should I register the copyright? Answer: In the United States , an original work becomes protected by the copyright laws from the moment it is “fixed in a tangible medium”. Thus, to copyright your software, you just need to fix the code in a tangible medium. This is as easy as saving the compiled code on a cd-rom. You should register your copyright with the U.S. Copyright Office. Registration provides additional benefits to the copyright owner such as the right to attorney's fees and three times actual damages in a copyright infringement action filed against someone who is unlawfully using your copyrighted work.

Question: How is ownership of a copyright determined?
Answer: Under U.S. copyright law, the author owns ownership of a copyright in a work, unless the author transferred ownership via a written agreement or the work was created in a work-made-for-hire relationship. A work-made-for-hire relationship occurs when a work is prepared by an employee within the scope of his employment, is specially ordered or commissioned for use as a specific type of work (which are enumerated in the U.S. Copyright Act), or the parties expressly agree in writing that the work is considered a work made for hire. This presents a potential pitfall for the unwary company that, for example, hires a consultant who is not a full-time employee of the company. Even if the company paid for the work, the company is not, generally, the owner of the copyright in the work, absent some written agreement entered into by the parties before the creation of the work.

Question: What is a trademark?
Answer: A trademark includes any name, symbol or device, or any combination thereof used, or intended to be used, by a person in commerce to identify and distinguish his or her goods, from those manufactured or sold by others and to indicate the source of the goods. For example, the trademark Xerox Ò identifies a certain brand of photocopier.

Question: My company was recently incorporated. Does that mean that I am free to use my company name as a trademark?
Answer: No. The Secretary of State is only concerned that there are not two identical corporate names and is not interested in whether your company name will likely be confused with a registered trademark. Further, a company name is considered a tradename and, thus, ineligible for U.S. trademark protection unless the company name is used in a manner that it also functions as a trademark (such as different lettering, styling, or accompanied by a design feature).

For answers to any other questions, or for greater discussion of these questions, please contact our office to schedule an appointment.